OHTA.ca

I was given a $490 ticket for, and I quote from the ticket, "drive - hand held communication device" while stopped at a red light. However, I wasn't actually using my phone. I picked it up from the cupholder after I stopped at the red light and was just fidgeting in the literal sense - no texts or calls were made, the screen wasn't on, and I wasn't even looking at it. I was absentmindedly looking around as one does when stopped at an intersection. As I turned to my right, I make eye contact with an officer who hand signals me to turn into the smaller street and pull over. Note that his sirens weren't on until after I pulled out in front of him. I don't know if this serves as some kind of soft evidence that I really was looking around and not at my phone (i.e. he didn't grab my attention from my phone with his lights, I actually just happened to make eye contact while looking around). I toss my phone on the passenger seat and pull over.

During the stop, the officer walks up to my passenger side window and asks "why are you holding your phone?" I told him I was stopped at a red light and I was just fidgeting, to which he responds "you didn't know you can't do that?" I reply no and he takes my license, proof of insurance, and ownership. I hand him my license and insurance, but struggle to find ownership in the cluttered glove box. He says he'll be in his car and tells me to bring it to him when I find it. Before going back to his car, he asks what kind of phone is that and I tell him it's a OnePlus 3. I eventually find the right document and walk it over to his car before getting back into my own. After a while, he returns to me with the ticket and leaves. That was the full extent of our interaction.

This is my first ever ticket, so I did some Googling to see my options and I came across this case from 2012. Here, a driver dropped their phone on the floor. When they stopped at a red light, they reached down to pick it up and was then ticketed for holding their phone. The ticket was appealed and a judge ruled "a momentary handling of a cell phone does not fall within the meaning of “holding” as found in the provision. The conviction is unreasonable and the appellant will be acquitted of the charge."

My uneducated takeaway from this is that the driver in this case held their phone while it was safe to do (stopped at a red light) and, given the context of the situation, was found not guilty. I am not at all educated in the field of law so I have no idea if this applies to my situation.

So now my question is: Is there any chance I can beat this at trial or should I just take the early resolution and hope for lowered fine?

The Court of Appeal overturned that ruling. Here's a snippet, but you can read the full ruling here.

[15] The interpretation of “holding” offered by the appeal judge requires that there be some sustained physical holding. Any holding for a shorter period of time, with the accompanying risks to road safety and driver attention, would be exempt from the prohibition. With respect, I do not think this accords with the ordinary meaning of the word. Nor does it properly reflect the object of the HTA or best achieve the legislature’s purpose in enacting the section. Moreover such an interpretation would leave the uncertainty of how long the physical holding must be sustained to be caught by the provision. It would create the enforcement challenge of requiring continued observation of the driver for that period of time if the prohibition is to be effective.

[16] I would therefore conclude that the appeal judge erred in his interpretation of “holding” in s. 78.1(1) of the HTA. The correct interpretation requires that the appeal be allowed and the conviction restored.